Madhya Pradesh High Court
Bhanwar Singh & Anr. vs State Of M.P. on 24 July, 2014
1
Cr. A. Nos.686/04, 691/04 & 715 of 2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
(HON. SHRI JUSTICE S.K.GANGELE &
HON. SHRI JUSTICE S.K. PALO)
CRIMINAL APPEAL No.686 OF 2004
....Appellants : Bhawar Singh & Ano.
Versus
....Respondent : State of M.P.
AND
CRIMINAL APPEAL No.691 OF 2004
...Appellants : Ram Singh & Ors.
Versus
....Respondent : State of M.P.
AND
CRIMINAL APPEAL No.712 OF 2005
...Appellant : Sube Singh
Versus
....Respondent : State of M.P.
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Shri A.K. Jain, Advocate for the appellant No.1 in Cr. Appeal
No.691/04.
Shri Bhagwan Raj Pandey, Public Prosecutor for the respondent/
State.
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JUDGMENT
(24/07/2014) Per Justice S.K. Palo, Criminal Appeal No.686/2004 which has been filed by the appellants, Bhawar Singh & Kalua @ Raj Kumar is being decided along with Criminal Appeal No.691/2004 in which 2 Cr. A. Nos.686/04, 691/04 & 715 of 2005 Ram Singh, Ranveer Singh, Upendra Singh & Munshi are the appellants and in Criminal Appeal No.712/05 which is a jail appeal filed by Sube Singh. These appeals arise out of the same sessions trial, therefore, judgment in this appeal shall also govern the disposal of connected Criminal Appeals No.691/04 & 712/2005.
2. The appellants have filed this appeal under Section 374 of Cr.P.C. aggrieved by the judgment of conviction and sentence dated 10.09.2004 passed by II Additional Sessions Judge (FTC), Sabalgarh, District Morena in Sessions Trial No.105/2002 (State of M.P. Vs. Ram Singh & Ors). The appellants have been convicted and sentenced as per the table given below:-
Accused No.1, Ram Singh -
(i) 302 of IPC Life imprisonment with In lieu of fine 1 Yr. R.I. fine of Rs.500/-
(ii) 307/149 of IPC 10 Yrs. R.I. with fine of In lieu of fine 1 Yr. RI Rs.500/-
(iii) 148 of IPC 3 Yrs. R.I. -
Accused No.2, Sube Singh, Accused No.4, Bhawar Singh & Accused No.5, Kalua & Accused No.7 Munshi -
(i) 302/149 of IPC Life imprisonment with In lieu of fine 1 Yr. R.I. fine of Rs.500/-
(ii) 307/149 of IPC 10 Yrs. R.I. with fine of In lieu of fine 1 Yr. RI Rs.500/-
(iii) 148 of IPC 3 Yrs. R.I. - Accused No.3, Ranvir - (i) 302/149 of IPC Life imprisonment with In lieu of fine 1 Yr. R.I. fine of Rs.500/- (ii) 307/149 of IPC 10 Yrs. R.I. with fine of In lieu of fine 1 Yr. RI Rs.500/- (iii) 148 of IPC 3 Yrs. R.I. - 3 Cr. A. Nos.686/04, 691/04 & 715 of 2005 (iv) 25 (1)(B) of 3 Yrs. with Rs.500/- In lieu of fine 3 months Arms Act (v) 27 Arms Act 3 Yrs. with Rs.500/- In lieu of fine 3 months Accused No.6, Upendra Singh (i) 302/149 of IPC Life imprisonment with In lieu of fine 1 Yr. R.I. fine of Rs.500/- (ii) 307 IPC 10 Yrs. R.I. with fine of In lieu of fine 1 Yr. RI Rs.500/- (iii) 148 IPC 3 Yrs. R.I. -
3. The prosecution story in brief is that on 13.06.2001 at about 05.30 pm at Village Badhreta complainant Rajpal alongwith Sevaram, Dataram, Vijay Singh & Vasudeo were going towards their house in the public path. This path is in front of the house of the accused Bhawar Singh. In the open terrace/balcony of accused Bhawar Singh, all accused persons having common object were sitting armed with their weapons. Accused Ram Singh and accused Upendra were armed with 12 bore single barrel guns, accused Ranveer was armed with 12 bore katta (country made gun), accused Sube Singh was armed with ballam, accused Kalua was armed with farsa, accused Bhawar Singh was armed with Kulhadi and accused Munshi was armed with 12 bore single barrel gun. When the complainant party reached in front of the house of Bhawar Singh, accused Ram Singh fired with his 12 bore gun which hit Sevaram on his forehead.
Sevaram fell down, he died on the spot. Accused Upendra Singh fired with his 12 bore gun to Dataram which hit his left wrist (kocha). Dataram also fell on the ground sustaining injuries. Accused Ranveer Singh fired with his 12 bore gun, 4 Cr. A. Nos.686/04, 691/04 & 715 of 2005 pellets of which hit Dataram's body. The complainant Rajpal took shelter of the wall and escaped injuries. The accused persons fired by their firearms with the intention to kill the complainant party. Accused Munshi fired from his 12 bore gun but the complainant had taken shelter of the wall, therefore, escaped injuries. Accused Kalua, accused Bhawar Singh and accused Sube Singh were abusing the complainant party and also instigated other accused persons to kill the complainant party by saying 'salo ko goli maar do, jane na paye'. Roshan Lal, Raghupati & Keshav Baghel were present at the spot and saw the incident. The deceased Sevaram and injured Dataram were taken to Sabalgarh by tractor trolly. On this report at Police Station Sabalgarh crime was registered. After due investigation, charge-sheet has been filed under Sections 302, 307, 147, 148 & 149 of IPC read with Section 25/27 of the Arms Act.
4. As per the chart mentioned below the accused persons were explained charges, they abjured guilt. In their examination under Section 313 of Cr.P.C., the accused persons pleaded that they are innocent and pleaded that they have been falsely implicated. The charges are as under:-
Accused No. Name Charges
Accused No.1 Ram Singh 148, 302 for Sevaram, 307/149 for
Dataram, 307/149 for Rajpal of IPC
Accused No.2 Sube Singh 148, 302/149 for Sevaram, 307/149
Dataram, 307/149 for Rajpal & 294
of IPC
5
Cr. A. Nos.686/04, 691/04 & 715 of 2005
Accused No.3 Ranveer Singh 148, 302/149 for Sevaram, 307/149 for Dataram, 307/149 for Rajpal of IPC, Section 25 (1) (B) & 27 of Arms Act.
Accused No.4 Bhawar Singh 148, 302/149 for Sevaram, 307/149 for Dataram, 307/149 for Rajpal 294 of IPC Accused No.5 Kalua @ Raj 148, 302/149 for Sevaram, 307/149 Kumar for Dataram, 307/149 for Rajpal, 294 of IPC Accused No.6 Upendra Singh 148, 302/149 for Sevaram, 307 for Dataram, 307/149 for Rajpal of IPC Accused No.7 Munshi 148, 302/149 for Sevaram, 307/149 for Dataram & 307 for Rajpal of IPC
5. The accused persons after adducing evidence were held guilty and sentenced as per the details mentioned in table at paragraph No.2.
6. Aggrieved with this, appellants have filed the present appeals.
7. In Criminal Appeal No.686/2004, the appellants Bhawar Singh & Kalua assailed the impugned judgment on the ground that the learned Trial Court did not appreciate the evidence properly. On the basis of interested witnesses, the judgment of conviction has been passed. The FIR was lodged three hours late which is a belated FIR. There are many contradictions and omissions in the statements. There was no proof of abusing by the appellants, therefore, they were acquitted of that charge. The panchayatnama (Exhibit P-4) and safina form (Exhibit P-5) does not contain names of the appellants. The appellants also submitted that as per the prosecution story, it is alleged that the main accused, Ram Singh stated to have fired the gun suddenly. The appellants did not know that Ram Singh would suddenly fire. In that 6 Cr. A. Nos.686/04, 691/04 & 715 of 2005 condition, the appellants had no common object to kill Sevaram, therefore, it is not proper to convict them under Section 302/149 of IPC. Therefore, the impugned judgment be set-aside and the appellants be set free.
8. In Criminal Appeal No.691/2004, the appellants Ram Singh, Ranveer, Upendra Singh and Munshi have assailed the impugned judgment on the grounds mentioned above. Beside that they have also submitted that appellant Munshi Singh is the son-in-law of the appellant Ram Singh. The investigating officer has not recovered any gun from the appellants. Recovery of gun from the appellant Munshi Singh is not proved. Therefore, the conviction of the appellants under Section 148 of IPC for having deadly weapons is not just and proper. The appellants cannot be convicted on the basis of their presence at the place of occurrence. Their participation in the crime is necessary for convicting them. The prosecution has not proved that Munshi Singh was the member of unlawful assembly. Therefore, his conviction under Section 302 read with Section 149 of IPC cannot be sustained. It is also contended that the learned Trial Court did not consider the presence of the appellants to constitute rioting. On the scrutiny of the evidence. If the so called injuries are corroborated by the medical evidence then, that can be accepted as against the accused who caused those injuries and then only they could be held to be members of the unlawful assembly, therefore, 7 Cr. A. Nos.686/04, 691/04 & 715 of 2005 conviction of the appellant, Ranveer Singh under Section 302/149 of IPC and Section 148 of IPC deserves to be set- aside.
9. The occular evidence is not corroborated with the medical evidence. It is alleged by the prosecution that gunshot have been fired from the roof of the house of accused Bhawar Singh, due to which deceased Sevaram and Dataram sustained injuries when they were on the road. Considering the nature and the shape and direction of injuries of the deceased and Dataram, the injuries were not from upward to downward. The occular evidence is therefore does not corroborate the medical evidence. Scrutiny of the evidence was improper. No independent witness has been examined and there is no explanation in the record in this regard. Besides, there are many contradictions and omissions, therefore, the appellants have been wrongly convicted. It is prayed for allowing the appeal and to set- aside the impugned judgment and to acquit the appellants.
10. In Criminal Appeal No.712/2005, the appellant, Suberam has filed jail appeal through Central Jail, Gwalior.
11. Shri Bhagwan Raj Pandey, learned Public Prosecutor has opposed the contentions made by the appellants and submitted that the learned Trial Court has considered all evidence available on the record, on the basis of which the learned Trial Court has arrived at the conclusion that there is ample evidence in the record as to their conviction, hence, 8 Cr. A. Nos.686/04, 691/04 & 715 of 2005 the appellants are rightly held guilty.
12. Having gone through the rival contentions and the evidence available in the record, we find that deceased Sevaram son of Balwant and injured Dataram son of Mahipati (P.W.2) have received gunshot injuries due to which Sevaram succumbed to death on the spot. Dr. R.B. Agrawal (P.W.14) in his post-mortem report (Exhibit P-34) clearly opined that the death of Sevaram has occurred due to gunshot injuries on the forehead and the mode of death is homicidal. As per the MLC report (Exhibit P-36) Dr. R.B. Agrawal (P.W.14) found punctured multiple wounds in the neck, head, shoulder, chest, left forearm, thigh and upper part of sternum of Dataram. These injuries were found to be pellets of gunshot. These pellets were taken out, sealed and given to the constable for examination. These injuries were of grievous nature but these injuries could not have caused death in the natural course. The gunshot injury received by Sevaram on his forehead might have been fired from a parallel height, therefore, the gunshot was received on the forehead and bullet passed through the upper portion of ear. The gunshot injuries received by Dataram could have been received from front side but the injuries on the dorsal side of the hand could be received because of special position of the hand.
13. Accused No.1 Ram Singh was arrested by Exhibit P-9. On the basis of memorandum Exhibit P-14 seizure memo 9 Cr. A. Nos.686/04, 691/04 & 715 of 2005 Exhibit P-16 was drawn and a 12 bore-gun (Article A) three live cartridges (Articles B,C & D) and three used cartridges (Article E,F & G) were seized.
14. Accused No.2 Sube Singh was arrested vide arrest memo Exhibit P-10. On the basis of memorandum Exhibit P-15 a ballam was sized from him vide seizure memo Exhibit P-13.
15. Accused No.3 Ranveer was taken into custody by arrest memo Exhibit P-32. On the basis of his memorandum Exhibit P-1, Exhibit P-20 seizure memo was drawn by which a 12 bore gun (Article I) and a cartridge (Article H) has been seized from him.
16 Accused No.4 Bhawar Singh was arrested vide arrest memo Exhibit P-30. On the basis of his memorandum Exhibit P-25 a kulhadi was seized by drawing seizure memo Exhibit P-21.
17. Accused No.5 Kalua @ Raj Kumar was arrested vide arrest memo Exhibit P-13 and on the basis of his memorandum Exhibit P-19 a farsa was seized by drawing seizure memo Exhibit P-18.
18. Accused No.6 Upendra was arrested by arrest memo Exhibit P-11. On the basis of memorandum Exhibit P-23 a gun and its licence has been seized by seizure memorandum Exhibit P-23.
19. Accused No.7 Munshi has been arrested by arrest memo Exhibit P-12.
10
Cr. A. Nos.686/04, 691/04 & 715 of 2005
20. On perusal of the F.I.R., it is shown that the report was lodged within 3 hours after the incident. The place of incident is stated to be at a distance of 12 Kms. from Police Station Sabalgarh. The injured person and the deceased were shifted to the hospital by arranging a tractor trolly. Thus, it cannot be said that the report was delayed. It can be further stated that in the present case the testimony of eye witnesses corroborate the medical evidence. Therefore, the prosecution version is fully established. In this regard, reference can be made to Ram Bali v. State of U.P. (2004 AIR SCW 2748).
21. The appellants have also assailed the impugned judgment on the basis that the names of the accused persons are not found place in the safina form and in the inquest (panchnama) report. In this regard, Devi Singh and others v. State of M.P., 1999 (1) JLJ 259 can be profitably referred in which it has been held that "inquest - purpose of holding - is to ascertain cause of death - names of accused are not to be mentioned therein."
22. As per the prosecution story, the accused persons were sitting together in the terrace/balcony (open chhatt) of accused Bhawar Singh. They were more than 5 in number. Some of them were having deadly weapons, therefore, there was a common object, hence, it constituted "unlawful assembly" and all the accused persons were members of that unlawful assembly. Any one of them cannot be termed 11 Cr. A. Nos.686/04, 691/04 & 715 of 2005 as innocent by-standers. The evidence show that there was an unlawful assembly and all the appellants were members of that unlawful assembly. There was use of force or violence by the members of unlawful assembly and that violence i.e., fire of gunshots, was done in prosecution of the common object of the unlawful assembly.
23. The objections raised by counsel for accused Munshi is that he was not a member of the unlawful assembly, it could be very well asserted that his presence was not there with other accused persons. But simply because no deadly weapon was seized from him, he cannot escape his criminality. For this, we should discuss the scope of Section 149 of IPC. It incorporates the principle of vicarious liability and holds a person liable for an offence, which he might not have actually committed, by reason of his being a member of an unlawful assembly. In other words, every member of an unlawful assembly having a common object is responsible for acts committed by any other member of that assembly, and is guilty of the substantive offence.
24. In the case of Umesh Singh v. State of Bihar reported in 2000 (5) Supreme 92, the Hon'ble Supreme Court has held that "an accused whose case falls within the terms of Section 149 of IPC cannot be put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly. Every one must be taken to have intended the 12 Cr. A. Nos.686/04, 691/04 & 715 of 2005 probable and natural results of the combination of the acts in which he had joined."
25. P.W.2, Dataram the injured has given a vivid description of the incident. The first gunshot was fired by accused Ram Singh which hit Sevaram on the forehead. Sevaram collapsed there. The second gunshot was fired by accused Upendra. Pellets of which hit Dataram on his chest. Accused, Ranveer then fired from country made gun, the pellets of which again hit Dataram. Rajpal (P.W.4), Brijesh Singh (P.W.9) & Raghupathi (P.W.10) have supported the statement of Dataram (P.W.2). The statement of Dataram (P.W.2), according to us, is unimpeachable testimony which is reliable. On account of firing of gunshot Sevaram had died. The evidence of other eye witnesses is further corroborated by medical evidence of autopsy surgeon, Dr. R.B. Agrawal (P.W.14).
26. It is worth mention here that, in criminal trial "proof beyond reasonable doubt does not mean that the degree of proof must be beyond a shadow of doubt." In this regard, the law laid down by the Hon'ble Apex Court in Iqbal Moosa Patel v. State of Gujarat, (2011) 2 SCC 198 can be profitably referred.
27. The Hon'ble Supreme Court has also propounded in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 Ξ 1983 Cr.L.J. 1096, as regarding appreciation of evidence in criminal trial. Which reads as under:- 13
Cr. A. Nos.686/04, 691/04 & 715 of 2005 "Over much importance cannot be attached to minor discrepancies. The reasons are obvious:-
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation, it is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident or the time duration of an occurrence usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time -
sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to be get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed 14 Cr. A. Nos.686/04, 691/04 & 715 of 2005 by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
(8) Discrepancies which do not go to the roof of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities - factor" echoes in favour of the version narrated by the witnesses."
28. Keeping in mind the above guidelines laid down by the Hon'ble Supreme Court, a minor discrepancies and the small variation of the witnesses cannot be said to have any adverse effect in the present case.
29. As far as the injuries caused to Dataram (P.W.2), all injuries are said to be pellets of gunshot. In this regard, Dr. R.B. Agrawal (P.W.14) has clearly stated that those were gunshot injuries and he also proved the x-ray Exhibit P-37 to be Exhibit P-42.
30. In absence of tattooing or blackening of skin of the deceased or injury at or around the gunshots, the injuries could have caused from more than three feet distance. Dr. R.B. Agrawal (P.W.14) has made it clear that there was no tattooing or blackening in the nearby wounds. He has specifically denied the suggestions made by the defence counsel at Para 31 of his cross-examination that the pellets which he recovered from the gunshot injuries of Dataram cannot be implanted at the time of X-ray. He has reasoned for the same that in case of implant, the pellets could have been round in shape, whereas the recovered pellets were of 15 Cr. A. Nos.686/04, 691/04 & 715 of 2005 oval (chapta) shape. He agreed to the suggestions that even the gunshot fired from a height, injuries caused to Dataram could be possible.
31. He also agreed to the suggestions that the injury caused to Sevaram on his head is not likely had the gunshot fired from the balcony from a distance of 12 feet. But this is only an opinion and the injury caused to Sevaram could have been possible, if Sevaram was looking upward, therefore, this opinion that the gunshot inflicted from the height of balcony could not have been possible cannot be adhered to.
32. In this regard, the appellants relied on unreported case of Pappu @ Gajraj v. State of M.P. passed in Criminal Appeal No.398/1999 decided on 16.11.2009 by a Division Bench of this Court. But the same is not attracted in the case because in the case of Pappu (supra), the blackening and charring marks on the dead body was present which could be inflicted from a close range of near about 3 feet, whereas in the present case as per the prosecution, the gunshot was fired from a distance and the balcony of a house. Similarly other case relied upon by counsel for the appellant Ram Singh is Mahendra Singh v. State of U.P. reported in 2011 AIR SCW 4939 is also not attracted in this case.
33. Counsel for the appellant Ram Singh also placed reliance relied on Daya Nand v. State of Haryana, 2008 AIR SCW 2151 in which it has been held that Murder - Solitary 16 Cr. A. Nos.686/04, 691/04 & 715 of 2005 injury - Gun shot fired by accused hit deceased on waist - Offence not murder - Accused liable to be convicted only under S. 304 Part II. In the present case the injury was on the forehead of the deceased not on the waist. Hence not attracted.
34. Counsel for the appellant also relied on Manke Ram v. State of Haryana reported in 2004 SCC (Cri) 106 in which the Hon'ble Supreme Court has held as under:-
"Murder or culpable homicide not amounting to murder - Appellant inviting the deceased S to his room to have a drink - While both of them were drinking, P.W.5 (nephew of S) interrupted their drinking session by asking his uncle to get up and join him for dinner - S acceded to the said request because of which the appellant S and appellant - Appellant using his service revolver causing fatal injuries to S - No enmity between S and appellant
- Absence of motive - Incident took place in a sudden fight in the heat of passion - Considering that S and the appellant were inebriated and the service revolver being next to the place where the fight took place and was not kept there by a planned act by the appellant, held, it could not be altogether ruled out that the shots were fired not with an intention of taking an undue advantage by the appellant - Thus, on facts, conviction of appellant altered from Section 302 IPC to S. 304 Pt. II IPC.
35. There has been enmity between the parties in the case in hand. There was no sudden fight. The incident took place can be termed as premeditated. The accused persons were waiting armed with deadly weapons, hence, the present case is distinguishable.
36. Similarly placing theory of a single gunshot fired by the appellant, counsel for the appellant argued that at the most it may constitute an offence under Section 304 Part II and 17 Cr. A. Nos.686/04, 691/04 & 715 of 2005 not section 302 of IPC. Counsel for the appellant relied on Surendra Singh @ Bittu v. State of Uttaranchal, (2006) 9 SCC 531, but the present case is not of the same nature for the simple reason that the appellants were waiting for the complainant to come with preparation armed with deadly weapons, whereas in the case of Surendra Singh (supra), the appellant acted on an impulse and that too upon instigation.
37. Similar is the case of Udayveer v. State of M.P., 2007 (3) MPHT 556 (DB) and unreported judgment of Laxman Yadav v. State of M.P. passed in Criminal Appeal No.67/2008 decided on 28.11.2011 by this Court. Hence, these references cannot render any help to the case of appellant Ram Singh.
38. Counsel for the appellant, Ram Singh placed reliance on unreported judgment of Dataram & Ors. v. State of M.P. passed in Cr.A.No.136/1998 decided on 3.7.2007 by this Court, in which there was no previous enmity and because there was some dispute about land and there was exchange of dialogues suddenly the appellant went running to his house and came back armed with 12 bore gun of his father and shot to the deceased. The present case is therefore distinguishable.
39. Counsel for the appellant, Ram Singh relied on Ziledar Singh v. State of M.P., 2011 (1) MPHT 505 (DB) In which the trial court convicted the appellants under Section 304 Part I 18 Cr. A. Nos.686/04, 691/04 & 715 of 2005 of IPC. It was a case of private defence, therefore, it is also distinguishable from the present case. Similarly reliance is being placed by the learned counsel for the appellant Ram Singh on unreported judgment of Manbendra Singh @ Banti & Ano. v. State of M.P. passed in Criminal Appeal No.216/2002 decided on 10.08.2010 and Murari v. State of M.P., passed in Criminal Appeal No. 371/2006 decided on 21.2.2012 are distinguishable and does not attract in the present case.
40. As regards the intention of the accused is concerned, the same cannot be proved by any means except that it can be asserted by actions of the accused. In this regard, the law laid down in Mangesh v. State of Maharashtra (AIR 2011 SC 637) can be profitably referred, which reads as below:-
"The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation and if so the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
41. The intentions of the accused persons in the present case can be inferred from their actions. Firstly, there was 19 Cr. A. Nos.686/04, 691/04 & 715 of 2005 preparation as they were armed with deadly weapons waiting for the complainant party to come. Secondly, the gunshot was fired straight on the head of deceased Sevaram. Thirdly, the gunshot fired to injured Dataram was shot in the chest among other parts of his body. Fourthly, there was enmity between the parties and they were not stranger. Fifthly, the incident took place in a cold-blooded situation. There was no heat of passion. All these circumstances show that the intention was very clear.
42. It is vehemently argued by learned counsel for the appellant Ram Singh that the injuries caused to Dataram (P.W.2) could not be caused by 12 bore gun. Because 12 bore gun bears bullets not pellets. But this contention doesn't have any positive support. At the other hand a 12 gauge shotgun can be used for firing of single solid slug and at the same time it can throw cartridge which have pellets. 12 gauge shells are most commonly used are round in shape and filled with lead or lead substitute pellets.
43. Relying on Panchaiah and others v. State of Karnataka reported in AIR 1994 SC 963, Awadesh and others v. State of U.P. reported in AIR 1995 SC 375 and Madru Singh v. State of M.P. reported in AIR 1997 SC 3527, a Division Bench of this Court in Devi Singh and others v. State of M.P., 1999 (1) JLJ 259 has held that "all accused coming together with respective arms - causing one death and injuries to witnesses - fled away together - incident proved by 9 20 Cr. A. Nos.686/04, 691/04 & 715 of 2005 witnesses - two of them injured - offences made out." Similar in the present case.
44. For the foregoing reasons, the appeals, filed by the appellants against their conviction and sentence, fails and is hereby dismissed. Their conviction under Section 148, 302/149 and 307/149 of IPC (appellant Ram Singh under Section 302 simpliciter of IPC and appellant Upendra under Section 307 simpliciter of IPC) are hereby affirmed, their sentences as described in paragraph No.2 are hereby affirmed. The appellants Bhawar Singh and Kalua are on bail. Their bail bonds shall stand cancelled and they are directed to surrender before the learned Trial Court on or before 26.08.14 to serve out the remaining part of the sentence, failing which the learned Trial Court shall issue arrest warrant against them and also notice to their sureties and may pass necessary order against them.
45. The Registry is hereby directed to send the original bail bonds filed by the appellants Bhawar Singh and Kalua to the learned Trial Court and photocopy thereof be retained in the original record. The original record of the learned Trial Court be sent back forthwith so as to reach the learned Trial Court on or before 26th August, 2014 for necessary compliance.
(S.K.Gangele) (S.K. Palo)
Judge Judge
24/07/2014 24/07/2014
(ra)